Open meetings initiative could have unintended side benefit to unions

The conservative think tank the Independence Institute is no fan of teachers’ unions, so some observers find it interesting that an institute-driven ballot measure might have the side effect of giving those unions a little advantage in contract negotiations with school districts.

The proposed change in state open meetings law, which appears on the Nov. 4 ballot as Proposition 104, would require that union-district contract negotiations be held in public. It would also require that school board strategy sessions be public meetings. Union strategy sessions could be held behind closed doors because non-government entities like unions aren’t subject to the open meetings law.

“For school boards it’s a little like playing poker with your cards facing up,” said Bruce Caughey, executive director of the Colorado Association of School Executives, which opposes Prop 104.

The Colorado Association of School Boards takes a similar view. “Boards will be less able to develop strategies … negotiations will become increasingly one-sided,” predicts Jane Urschel, deputy executive director of the group. CASB also formally opposes the measure.

Two other parties to the argument are less willing to make predictions.

Leaders of the Colorado Education Association declined to comment directly on the question of possible union advantage. President Kerrie Dallman made a more general comment, saying, “Proposition 104 contains some vague language, drafted without input from educators or school administrators. As a result, there is speculation on what this law would actually mean to school districts and employee associations as they bargain contracts at the local level. The unclear intent of Proposition 104 may cause confusion and frustration.”

Asked about the question, Jon Caldara, president of the institute, only said, “Transparency is good for everyone. Prop 104 makes transparency the default. If this is such an advantage for the unions, why are they against it?”

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One outside observer, Kelly Hupfeld of the University of Colorado Denver, sees some possible advantage for unions. “In collective bargaining negotiations, like any other negotiations, you use the time in private with your team to discuss what your priorities are and what you are and are not willing to compromise on. If you have to tell your superintendent in a public meeting what you are and are not willing to compromise on, it obviously takes away your leverage and hamstrings your ability to compromise in a strategic way.”

But, Hupfeld added, “I’m not really sure how much of an advantage it will be. I think the initiative is more likely just to lead to less meaningful negotiations overall.” Hupfeld is associate dean of UCD’s School of Public Affairs and formerly worked as a labor lawyer.

Measure also expands definition of covered officials

In addition to requiring open negotiating sessions and public board strategy sessions, Prop 104 also expands the kinds of district leaders subject to the open meetings law.

The existing state sunshine law generally applies to elected and appointed members of boards and commissions but does not cover employees such as school administrators. Prop 104 would change that provision for school districts, requiring that what the law calls a local public body “should include members of a board of education, school administration personnel, or a combination thereof who are involved in a meeting with a representative of employees at which a collective bargaining agreement is discussed.” (District administrators rather than a full school board typically conduct negotiations.)

Opponents fear that language could cover such things as a hallway discussion between a principal and a building union leader.

“We think it covers any conversation, any discussion about a contract,” said Caughey.

Caldara dismisses such arguments, noting that the term “meeting” has a specific meaning in current law – a session including a quorum or at least three members of a local public body.

Such arguments “just don’t hold water,” he said.

What else the two sides are saying

The overarching arguments for and against Prop 104 are fairly simple.

“I believe secrecy is the enemy of good government,” Caldara says. “Politicians aren’t going to let sunshine in if they don’t have to.”

Given that a labor contract represents the largest portion of a district’s budget, taxpayers, parents and teachers should have access to how contracts are negotiated, he argues.

The education groups opposed to Prop 104 argue that its provisions are unclear and that imposing a statewide rule infringes on the local control powers of school districts.

“We feel the initiative would create significant ambiguity in the [open meetings] statute, Urschel said. School board members would have to be retrained in how to handle the law, likely would have to spend more money on legal advice and “inevitably be subject to lawsuits,” she argued.

Ranelle Lang, a former Greeley superintendent who is campaigning against the measure, argues that school boards currently can decide if they want open or closed negotiations. “It’s something that can happen right now, so why do we need a statewide measure? It should be managed at the local level.”

Caldara’s response to the ambiguity argument is to note that Prop 104 would only change state law, not add a new section to the constitution.

“Even if all their fears are correct, the legislature can change it,” he said.

Campaigns mostly under the radar

Contract landscape

CEA locals have teacher contracts in 17 of the 20 largest districts. There are additional contracts in smaller districts, plus contracts for other groups of school employees. A small number of employee groups are represented by other unions. But most districts don’t have contracts. See CEA list here.

Bargaining history

The first contract between a district and teachers was signed in 1967 in Denver. Most large districts followed in the late 1960s and early ‘70s. A 1977 Colorado Supreme Court decision held that school district contracts, known as master agreements, were legal.

Both campaigns are modestly funded, limiting their activities mostly to speaking engagements, websites and some literature distribution.

The Sunshine on Government Committee has received $284,312 in “non-monetary” contributions from the institute, which primarily covered to cost of circulating the petitions necessary to get Prop 104 on the ballot. The committee has received an additional $20,100 in director contributions from the institute, money that hadn’t been spent as of the Sept. 29 reporting deadline.

Opponents, organized as the Local Schools, Local Choices committee, have raised $62,300, including $42,200 from CEA, $5,000 from the American Federation of Teachers and $15,000 Education Reform Now, which is affiliated with Democrats for Education Reform.

One of the opposition’s talking points is what they see as the institute’s lack of transparency in its campaign funding. (The sources of non-monetary contributions don’t have to be reported.) Caldara said the money came from institute reserves.

The issue has a history

There have been repeated legislative attempts in recent years to open district contract negotiations. Those Republican-sponsored bills have all died, opposed by school district lobbyists. (One session, discussion of expanding the requirement to all local governments also raised the hackles of county and municipal lobbyists.) Caldara said the failure of legislative efforts prompted his petition campaign.

Republicans and conservative allies like the institute push this issue partly because of disagreements with teachers’ unions over educational policy and because the CEA is a significant funder of Democratic candidates.

Will open meetings matter?

A handful of Colorado districts already conduct negotiations in public. Most frequently mentioned are Colorado Springs District 11 and the Poudre schools.

But both those districts use a process called “interest-based bargaining,” which is a more collaborative approach than traditional collective bargaining. And those district methods allow closed strategy sessions.

Open negotiating sessions are required by state law in Idaho. “I think the response has been very good both from the teachers’ side and the school board side,” said Karen Echeverria, executive director of the Idaho School Boards Association. “Negotiations for the most part are going very smoothly.” But, she said, the law allows closed strategy sessions for school boards.

Both Echeverria and Greg Grote, president of the Poudre Education Association, note that open meetings don’t necessarily draw public interest.

“I will tell you that nobody shows up for these things,” Echeverria said. “You might see a reporter occasionally, [but] there really isn’t anyone showing up.”